exv10w34



 





EXHIBIT 10.34




EXCLUSIVE LISTING AGREEMENT




          THIS EXCLUSIVE LISTING AGREEMENT (“Agreement”) is made as of the 4th day
of March, 2004, by and between EBS BUILDING, L.L.C., a Delaware limited
liability company, having an address for notice purposes of c/o FTI
Consulting, Inc., 1200 Abernathy Road, Suite 1700, 600 Northpark Town Center,
Atlanta, Georgia 30328, Attn: Mr. Keith F. Cooper, Senior Managing Director
(“Owner”) and COLLIERS TURLEY MARTIN TUCKER, INC., a Missouri corporation,
having an address for notice purposes of 7701 Forsyth, Suite 500, Clayton,
Missouri 63105 (“Broker”).



WITNESSETH:



          WHEREAS, Owner owns the building presently known as One Financial Plaza,
with an address of 501 North Broadway, in St. Louis, Missouri, appurtenant
related parking facilities (partly owned in fee, partly by leasehold) and
appurtenant common areas (hereinafter, together with the real estate on which
the same are situated, collectively referred to as the “Property”); and



          WHEREAS, Owner desires to engage Broker as Owner’s agent to sell the
Property and Broker desires to accept such engagement, upon and subject to the
terms and conditions set forth herein.



          NOW, THEREFORE, for and in consideration of the mutual agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Owner and Broker
hereby agree as follows:




	1.	 	Exclusive Right to List






	a.	 	Right to Sell. Owner hereby grants to Broker the exclusive right to
sell the Property
for the term of this Agreement. Notwithstanding anything to the contrary
herein or elsewhere,
all terms and conditions of an agreement with any prospective purchaser
shall be subject to
Owner’s sole and absolute discretion. Owner has the absolute right in all
events to approve or
to disapprove any and all proposals regarding pricing, marketing and
terms of sale of the
Property. Broker shall have no authority to extend any offer or make any
agreement on behalf
of or binding on Owner, and Broker shall have no authority to accept
security or other
deposits in connection with any offer to purchase the Property;
accordingly, an agreement to
sell the Property shall become effective only when (i) signed by an
authorized signatory on
behalf of Owner and the prospective purchaser and (ii) delivered by
Owner to such
prospective purchaser.
	 
	b.	 	List of Prospective Purchasers. Within ten (10) days of the date
hereof, Owner shall
provide Broker a list of all prospective purchasers with whom it
has had substantive
discussions regarding a sale of the Property during the last six (6)
months. Owner shall furnish
to Broker such information with respect to the Property and Owner and use
reasonable
efforts to provide access to the Property as Broker may reasonably
request, subject to the
rights of tenants of the Property, in order to enable Broker to render
its services effectively.
The Company represents that, to the best of its knowledge, all
information furnished by it to
Broker with respect to the Property will be accurate and complete in all
material respects.




 









 












	2.	 	Term
	 
	 	 	The term of this Agreement shall end, and this Agreement shall terminate
and be of no further force and effect, on August 1, 2004; provided,
however, that (a) Owner shall have the right to terminate this Agreement
and end the term without cause at any time by providing thirty (30)
day’s prior written notice to Broker, (b) Owner shall have the further
right to terminate this Agreement and end the term without cause
immediately upon the termination of Owner as a limited liability company
or termination of the operating agreement dated as of September 26,
1997, under which Owner is constituted, (c) Owner shall have the further
right to terminate this Agreement and end the term without cause
immediately upon the sale, merger or consolidation of Owner and (d)
Owner and Broker shall each have the right to terminate this Agreement
and end the term for cause immediately upon giving written notice of
such cause and such termination to the other party.
	 
	3.	 	Duties of Broker
	 
	 	 	Broker accepts the relationship of trust and confidence established
between Broker and Owner under this Agreement. Broker agrees to take all
actions reasonably required or helpful in selling the Property as
promptly as possible, including, but not limited to, promoting and
marketing the Property for sale, using its diligent and best efforts,
skill, judgment, and abilities to show the Property, offering the
Property for sale, procuring prospective purchasers for Property,
cooperating with outside brokers representing such prospective
purchasers, obtaining financial and reference information on prospective
purchasers, promptly submitting all offers to purchase the Property to
Owner, taking photographs of the Property, making monthly inspections of
the Property, and other actions as may be directed by Owner from time to
time including, but not limited to, as a when requested by Owner, using
best efforts to assist Owner with obtaining tenant estoppel certificates
and subordinations. Inquiries regarding the Property shall be referred
to Broker and related negotiations shall be handled by or under
direction of Broker, subject to the approval and review of Owner and
subject to the participation of legal counsel selected and retained by
Owner to assist as necessary in preparation and negotiation of the sale
contract and to institute and defend any and all legal proceedings
associated with the sale of the Property; provided that no such legal
proceedings or compromises or settlements of such legal proceedings
shall be undertaken or defended without, in each instance, the prior
written approval of Owner. Without limiting the generality of the
foregoing, Broker specifically agrees to provide monthly activity
reports to Owner on or before the 20th day of each calendar month,
detailing the activities undertaken by Broker in connection with the
sale of the Property, including, but not limited to, any outstanding
offers, prospects shown the Property, active prospects, and other
marketing activities. To extent permitted by applicable law, Broker
agrees to retain Secured Capital Corp (“SCC”) as an advisor pursuant to
an advisory agreement (the “Advisory Agreement”) in substantially the
form attached hereto as Exhibit 1 to assist Broker with the discharge of
the duties and obligations of Broker pursuant to the terms and
conditions of this Agreement. To the extent permitted by applicable law
and without limiting the scope or nature of the duties which Broker and
SCC may perform hereunder, Broker and SCC shall allocate their duties in
connection with efforts to sell the Property in the manner set forth in
the Advisory Agreement.
	 
	 	 	Broker shall be responsible for coordinating and supervising all services
provided by SCC and




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	 	 	any other cooperating brokers as necessary to facilitate the timely and
proper performance of the services and activities required by this
Agreement. The costs of any services performed by any of the cooperating
brokers, including, but not limited to, SCC, are included in the
compensation for the Broker’s services established by this Agreement. The
retention of any cooperating brokers other than SCC shall be subject to
the prior approval of Owner. Notwithstanding anything to the contrary
herein or elsewhere, Broker shall perform its duties under this Agreement
at its own expense and shall be entitled to no reimbursement of costs
other than as expressly provided in Sections 4, 5 and 6 of this
Agreement.
	 
	4.	 	Commission on Sale
	 
	 	 	Upon the sale of the Property pursuant to a written sale contract
executed during the term of this Agreement, Owner agrees, subject to the
conditions contained in Section 8 hereof, to pay to Broker a commission
in accordance with Exhibit 2 attached hereto and incorporated herein by
reference. The commission shall be deemed earned, due and payable in
full when, and only if, title to the Property is transferred to a
Purchaser of the Property and Owner shall pay such commission concurrent
with such transfer. Broker shall be responsible for paying any and all
commissions to SCC and any other cooperating broker after Broker is paid
by Owner, and Broker shall indemnify and hold Owner harmless from and
against the claims of SCC or any other cooperating broker with claims
arising from a cooperating broker relationship initiated by or through
Broker, including, but not limited to, attorneys’ fees and expenses in
connection with Owner’s defense against such claims. Broker’s payment to
SCC shall be as set forth in Exhibit 2. Notwithstanding the foregoing,
Broker hereby agrees that, concurrent with Owner’s payment of Broker’s
commission payable in accordance with Exhibit 2, Owner shall effect
payment of SCC’s commission under the Advisory Agreement directly to SCC
and Owner’s obligations to Broker hereunder shall be reduced on a dollar
for dollar basis to the extent of Owner’s payment to SCC. Owner shall
only be obligated to make such payment to SCC when and if a commission
is due and payable to Broker under this Agreement.
	 
	 	 	Owner reserves the right to modify the marketing plan or withdraw the
Property from the market, without being liable for any commission
hereunder, at its discretion throughout the term of this Agreement.
Broker shall not be entitled to any commission with respect to offers to
purchase which, when submitted to Owner for approval pursuant to this
Agreement, shall, for any reason, be rejected by Owner. Owner shall not
have any obligation to sue any prospective purchaser who defaults under
the terms of a binding contract of sale for damages or specific
performance. In the event a prospective purchaser defaults and Owner
becomes entitled to such prospective purchaser’s earnest deposit, then
such earnest deposit shall be forfeited to Owner as liquidated damages,
and Broker shall not be entitled to any part thereof. No commission will
be deemed earned and payable in the event the Property or any portion
thereof is (i) taken by a municipality or other authority in a
condemnation or similar proceeding or by deed in lieu thereof, (ii)
acquired by a lender under a foreclosure proceeding or other similar
process, or (iii) transferred or sold to parent, subsidiary or entity
under common control or common management with Owner. Owner and Broker
each hereby stipulate that for the purposes of this paragraph, none of
its Designation Members (as such term is defined in Owner’s Members
Agreement) nor Heitman Advisory Corp. or any of their respective
affiliates shall be deemed to be under common control or common
management with Owner.




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	5.	 	Post-Termination Commissions
	 
	 	 	Within ten (10) days following the termination of this Agreement, Broker
may submit to Owner a written list (the “Prospective Purchaser List”) of
any person or entity proposed by Broker or SCC during the term of this
Agreement as a prospective purchaser of the Property with whom Broker or
SCC had substantial negotiations, as defined below, during the term of
this Agreement. The term “substantial negotiations” shall mean that (a)
Broker or SCC provided marketing materials regarding the Property and
(b) either Broker or SCC brought the prospective purchasers to the
Property, the prospective purchaser had negotiations with Owner or
Broker or SCC received a signed letter of intent. The Prospective
Purchaser List shall include the names and addresses of such prospective
purchasers and supporting documentation of such negotiations. Neither
Broker nor any cooperating broker shall have any claim of commission
(and each hereby waives any claim of commission) with respect to any
person or entity procured or claimed to have been procured by Broker or
such cooperating broker who shall purchase the Property after the
termination of this Agreement unless and except to the extent such
person or entity shall be included on the Prospective Purchaser List so
submitted to Owner within ten (10) days after termination of this
Agreement. If within one hundred and eighty (180) days from the date of
termination of this Agreement, a sale is consummated between Owner and
any person or entity included on the Prospective Purchaser List
submitted to Owner, Owner shall pay Broker, subject to the conditions
contained in Section 8 hereof, the commission in accordance with Exhibit
2. The agreements of this Section 5 shall survive the termination of
this Agreement and shall be deemed to bind any cooperating broker
engaged by Broker.
	 
	6.	 	Advertising and Marketing
	 
	 	 	Broker shall (a) advertise the Property for sale; (b) prepare a marketing
plan, brochures and collateral materials for the Property (which
materials, to the extent permitted by applicable law, shall identify SCC
as a cooperating broker); and (c) engage competent consultants (e. g.
public relations, advertising, etc.) on an “as needed” basis. The content
and extent of the advertising and marketing activities of Broker and the
services and consultants engaged by Broker in connection with the same
shall be subject to the prior approval of Owner. Broker identification
signage, if any, on or within the Property shall be subject to the prior
approval of Owner, and Broker shall be responsible for assuring that any
such signage conforms to applicable laws and code and all requirements
and restrictions of the leases of the Property and any recorded
instruments encumbering the Property. Upon termination of this Agreement
(or sooner, if directed by Owner), Broker shall remove its identification
signage from the Property and fully restore and repair all damage caused
by installation or removal; and the agreement to do so under this Section
6 shall survive the termination of this Agreement. Broker shall be
responsible for the costs of all marketing, and advertising activities
with respect to the Property, provided, however, that Owner shall
reimburse Broker for all such out-of-pocket costs and expenses for which
Broker has obtained the prior written approval of Owner (provided that in
no event shall Owner be required to reimburse any such costs or expenses
in excess of the cumulative amount of $40,000), and excepting, however,
that Owner shall pay the cost of legal counsel selected and retained by
Owner in accordance with Section 3 of this Agreement.




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	7.	 	Nondiscrimination
	 
	 	 	The Property shall be offered without regard to race, color, creed,
religion, national origin, sex, handicap, or familial status.
	 
	8.	 	Representations






	a.	 	Owner Representations. Owner makes no representations or
warranties regarding the
Property or the condition of the Property including, but not
limited to, the presence or
absence of asbestos, PCB transformers, or toxic, hazardous or
contaminated substances
in, on or about the Property. Broker is not authorized to make any
representations or
warranties relating to the Property unless and except to the extent
expressly approved in
writing by Owner.
	 
	b.	 	Broker Representations. Broker represents and warrants to
Owner that Broker and all
of its agents performing services under it shall be duly licensed
in the State of Missouri
to the extent required by applicable law, and agrees to comply with
all applicable laws in
the performance of the services hereunder including, but not
limited to, the real estate
broker licensure requirements of Chapter 339 of the Missouri
Revised Statutes. Broker
covenants to keep its license and those of its agents performing
services under this
Agreement in good standing at all times during the term of this
Agreement to the extent
required by applicable law.






	9.	 	Indemnification
	 
	 	 	Owner shall hold harmless and indemnify Broker and SCC (as Broker’s
advisor) against any liability, loss or expense incurred by Broker or
SCC (as Broker’s advisor) as a result of any misrepresentation of Owner
or its agents (other than Broker) or the gross negligence or willful
misconduct of Owner or its agents (other than Broker). Broker shall hold
harmless and indemnify Owner against any liability, loss or expense
incurred by Owner as a result of (a) any misrepresentation of Broker,
its agents or employees, (b) the gross negligence or willful misconduct
of Broker, its agents, employees or invitees, or (c) any claim for a
commission made by any other broker or agent not in the employ of Owner.
The agreements of this Section 9 shall survive the termination of this
Agreement.
	 
	10.	 	Standards
	 
	 	 	Broker shall further the interests of Owner in accordance with Owner’s
from time to time requirements, procedures and directions, in accordance
with the highest professional standards. Broker shall comply with all
national, federal, state, and municipal laws, regulations, codes,
ordinances, and orders applicable to Broker and the activities of Broker
and its agents or employees under and in connection with this Agreement.
	 
	11.	 	Assignment
	 
	 	 	Broker shall not be entitled to assign any rights or to delegate any
duties or obligations under this Agreement, and any assignment in
violation of this prohibition shall be void.




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	12.	 	Governing Law
	 
	 	 	This Agreement shall be construed according to and governed by the laws
of the State of Missouri. THE PARTIES HERETO SPECIFICALLY WAIVE ANY RIGHT
OR CLAIM TO A JURY TRIAL IN THE EVENT OF A DISPUTE HEREUNDER, OR ARISING
OUT OF OR INVOLVING THE SUBJECT MATTER HEREUNDER WHETHER ARISING IN
CONTRACT OR TORT. The provisions of this paragraph shall survive the
termination or expiration of this Agreement.
	 
	13.	 	Attorney’s Fees
	 
	 	 	In connection with any controversy arising out of this Agreement, the
prevailing party shall be entitled to recover, in addition to costs,
damages or other relief, its attorney’s fees and costs incurred.
	 
	14.	 	Modifications
	 
	 	 	This Agreement may not be amended, modified or changed, nor shall any
waiver of any provisions hereof be effective, except only by an
instrument in writing and signed by the party against whom enforcement
of any waiver, amendment, change, modification or discharge is sought.
	 
	15.	 	Notices
	 
	 	 	All notices or other communications required or desired to be given
hereunder shall be in writing and shall be effective for all purposes if
hand delivered to the parties at the respective addresses set forth
above (or such other addresses as the parties may hereafter designate in
writing) or sent to the respective parties at such addresses by (a)
certified or registered United States mail, postage prepaid, (b)
expedited prepaid delivery service, either commercial or United States
Postal Service, with proof of attempted delivery, or (c) by telecopier
(with answer back acknowledged and so long as the original of said
telecopy is mailed the next day). A notice shall be deemed to have been
given: in the case of hand delivery, at the time of delivery; or in the
case of mail delivery three (3) days after having been deposited in the
United States mail postage prepaid and properly addressed; or in the
case of notice sent via overnight delivery service or telecopy, upon
receipt.
	 
	16.	 	Independent Contractor
	 
	 	 	It is expressly understood and agreed that Broker, as an agent of Owner,
will act as an independent contractor in the performance of this
Agreement. The parties hereby agree that nothing in the Agreement shall
be intended or construed to create an employer-employee relationship, a
partnership, or a joint venture with respect to the Property or
otherwise.
	 
	17.	 	Subordination
	 
	 	 	This Agreement shall be subject and subordinate to any mortgage or deed
of trust now or hereafter encumbering the Property or any part thereof,
and at the option of the beneficiary of




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	 	 	any such mortgage or deed of trust or any transferee of title to the
Property by virtue of foreclosure of the lien of such mortgage or deed of
trust (such option to be exercised by written notice to Broker) or by
transfer in lieu of foreclosure (i) Broker shall attorn to and recognize
such beneficiary or transferee as the successor to Owner of the Property,
and Broker shall thereupon continue to perform Broker’s covenants
hereunder or (ii) such beneficiary or transferee may terminate this
Agreement as of the date of notice of foreclosure or transfer. Broker
hereby agrees that the beneficiary of any such mortgage or deed of trust
and the transferee of title to the Property shall be intended third party
beneficiaries of this Agreement entitled to enforce these provisions.
	 
	18.	 	Liens
	 
	 	 	Broker agrees to execute and deliver to Owner, as a condition to any
payment due to Broker from Owner hereunder, waivers of lien pursuant to
any stature which may grant Broker the right to a lien on the Property
as may be requested by Owner in connection with such payment. If Broker
is to pay any cooperating broker out of funds paid to Broker by Owner,
Broker shall make no such payments without first obtaining similar
waivers of lien from such cooperating broker, and the delivery of such
waivers of lien from such cooperating broker shall, if requested by
Owner, be a further condition to payment due to Broker. Broker further
agrees that any and all rights which Broker, and anyone claiming by,
through or under Broker, may have to a lien under any statute shall be
at all times subject and subordinate to the lien of any mortgage or deed
of trust, and Broker further agrees, upon Owner’s request, to execute
and deliver to the holder of any mortgage or deed of trust against the
Property or any interest therein a subordination agreement expressly
subordinating any and all such liens rights to the lien of such mortgage
or deed of trust. The agreements of this Section 18 shall survive the
termination of this Agreement.
	 
	19.	 	Exculpation
	 
	 	 	Recourse for the obligations of Owner under this Agreement shall be
limited to Owner’s interest in the Property. The obligations of Owner
under this Agreement shall not be personally binding on or enforceable
against Owner, nor shall any resort be had to the assets of any of the
members, managers, agents, or asset manager of Owner, as the case may
be, or any of their representatives, partners, members, beneficiaries,
stockholders, employees or agents.
	 
	20.	 	Binding Effect; Counterpart Signatures
	 
	 	 	This Agreement shall be binding upon, and shall inure to the benefit of,
the successors and assigns of the parties hereto, subject to the
restrictions and limitations of Sections 11 and 19 of this Agreement.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all such counterparts, taken
together, shall constitute but one and the same instrument. Facsimile
signatures on any counterpart shall be effective as an original
signature, but the parties hereto agree to deliver to the other original
signatures within thirty (30) days after the date of this Agreement.
	 
	21.	 	Entire Agreement
	 
	 	 	This Agreement constitutes the entire agreement between Broker and Owner
and supercedes all




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	 	 	prior discussions, negotiations and agreements,
whether oral or written.
	 
	22.	 	Confidentiality; Publicity
	 
	 	 	Broker shall maintain in the strictest of confidence all information with
respect to (a) the Property and (b) all offers, negotiations and
transactions involving the sale, or proposed sale of the Property;
provided, however, nothing herein contained shall prevent Broker from
marketing the Property in accordance with the terms hereof and otherwise
performing its obligations hereunder. Broker shall not issue any press
releases or otherwise publicize the closing (or any negotiations with
respect thereto) without the prior written consent of Owner. The
provisions of this paragraph shall survive the termination or expiration
of this Agreement.





[The remainder of this page is intentionally left blank.]




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          IN WITNESS WHEREOF, the parties hereto have duly entered into this
Agreement as of the day and year first above written.



OWNER:




EBS BUILDING, L.L.C.




	 	 	 	 	 	 	 
	By:	 	FTI Consulting, Inc.,	 	 
	 	 	its Manager	 	 
	 
	 	 	 	 	 	 
	

	 	By:	 	/s/ Keith F. Cooper	 	 
	

	 	 	 	
 	 	 
	

	 	 	 	Name: Keith F. Cooper	 	 
	

	 	 	 	Title: Senior Managing Director	 	 







BROKER:




COLLIERS TURLEY MARTIN TUCKER, INC.




	 	 	 	 	 	 	 
	By:

	 	/s/ David Thiemann	 	 
	 	 	
 	 	 
	

	 	Name:	 	David Thiemann	 	 
	

	 	Title:	 	Managing principal	 	 







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EXHIBIT 1




ADVISORY AGREEMENT





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ADVISORY AGREEMENT




          THIS ADVISORY AGREEMENT (the “Agreement”) is made as of March 4, 2004 by
and between COLLIERS TURLEY MARTIN TUCKER, INC. (“Local Broker”) and SECURED
CAPITAL CORP (“SCC”). Local Broker and SCC may be collectively referred to as
the “Parties.”



RECITALS:




          WHEREAS, Local Broker has entered into an Exclusive Listing Agreement
dated March 4, 2004 with EBS BUILDING, L.L.C. (“Owner”), pursuant to which
Local Broker has been retained as the local broker with respect to the sale of
the property known as One Financial Plaza, located at 501 North Broadway, in
St. Louis, Missouri (the “Property”); and



          WHEREAS, Owner desires that Local Broker retain SCC to present the
Property to investors on a national basis, and Local Broker and SCC agree to
enter into such an engagement, subject to the terms and conditions set forth
herein.



          NOW, THEREFORE, for and in consideration of the mutual agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Local Broker and SCC
hereby agree as follows:



AGREEMENT:




          1. Duties of Parties. In connection with sale of the Property, the Parties
understand and agree that throughout the process of marketing the Property,
Local Broker will be responsible for performing local marketing activities
within the state of Missouri in order to ensure compliance with applicable
Missouri law. In addition, Local Broker will provide assistance to SCC in
order for it to effectively prepare marketing materials and present the
Property to investors on a national basis outside of Missouri. Without
limiting the forgoing, the respective duties of the Parties shall include,
without limitation, the following:




	(a)	 	Duties of SCC:






	(1)	 	Create a national investor list.
	 
	(2)	 	Develop marketing plan and strategy.
	 
	(3)	 	Prepare marketing materials, including teasers and a marketing
book.
	 
	(4)	 	Distribute marketing materials to non-Missouri investors.
	 
	(5)	 	Make marketing and follow-up calls to non-Missouri investors.
	 
	(6)	 	Respond to non-Missouri investors’ questions.
	 
	(7)	 	Evaluate offers.
	 
	(8)	 	To the extent requested, assist client and its counsel in
negotiations and closing.




 









 












	(b)	 	Duties of Local Broker:






	(1)	 	Prepare and supply relevant local market and
economic data (including market
rental rate data) to assist in SCC’s preparation of financial
and replacement cost
analysis of the Property, as requested by SCC.
	 
	(2)	 	Supply relevant lease and sales figures on comparable
properties.
	 
	(3)	 	Identify and quantify competing properties for sale.
	 
	(4)	 	Distribute marketing materials to Missouri investors.
	 
	(5)	 	Make marketing and follow-up calls to Missouri investors.
	 
	(6)	 	Respond to Missouri investors’ questions.
	 
	(7)	 	Be available to work with photographers,
graphic designers, property managers,
asset managers, etc. to ensure the information contained in the
marketing materials is accurate.
	 
	(8)	 	Conduct property tours.
	 
	(9)	 	Cooperate with SCC and perform such other
duties and activities as deemed
necessary and appropriate to insure the successful marketing of
the Property and
compliance by SCC and Local Broker with applicable Missouri real
estate laws.




Local Broker represents and warrants that all information provided to SCC
hereunder shall be the most current information reasonably available and shall
be, to the best of its knowledge, true, correct and accurate. Notwithstanding
anything to the contrary herein or elsewhere, SCC acknowledges and agrees that
all terms and conditions of an agreement with any prospective purchaser shall
be subject to Owner’s sole and absolute discretion. Owner has the absolute
right in all events to approve or to disapprove any and all proposals
regarding pricing, marketing and terms of sale of the Property. SCC shall have
no authority to extend any offer or make any agreement on behalf of or binding
on Owner, and SCC shall have no authority to accept security or other deposits
in connection with any offer to purchase the Property; accordingly, an
agreement to sell the Property shall become effective only when (i) signed by
an authorized signatory on behalf of Owner and the prospective purchaser and
(ii) delivered by Owner to such prospective purchaser. SCC accepts the
relationship of trust and confidence established between SCC, Local Broker and
Owner under this Agreement. SCC, in coordination with Local Broker, agrees to
take all actions reasonably required or helpful, so long as permitted by
applicable law, in selling the Property as promptly as possible, including,
but not limited to, promoting and marketing the Property, using its diligent
and best efforts, skill, judgment, and abilities to present the Property,
offering the Property for sale, procuring prospective purchasers for Property,
cooperating with outside brokers representing such prospective purchasers,
obtaining financial and reference information on prospective purchasers,
promptly submitting all offers to purchase the Property to Owner and Local
Broker, arranging for photographs of the Property, and other actions as may be
directed by Owner from time to time including, but not limited to, as a when
requested by Owner, using best efforts to assist Owner with obtaining tenant
estoppel certificates and subordinations.



2. Fee. Local Broker agrees to pay (or cause Owner to pay through escrow) SCC a
fee equal to 80% of the gross commission paid by Owner to Local Broker under the
Listing Agreement
(including any post termination commission paid thereunder). Such fee shall be
due and payable out
of escrow concurrent with the closing of the sale of the Property. Local Broker
has advised SCC
that the fee payable under the Listing Agreement is as reflected on Exhibit A
attached hereto.



3. Expenses. Local Broker has arranged for Owner to reimburse SCC directly for its




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reasonable third party marketing expenses in an amount not to exceed $40,000.
The marketing expenses shall include reasonable travel costs associated with
SCC’s services and the cost of producing and distributing descriptive marketing
materials (including printing expenses and the costs of procuring and
reproducing photographs, maps, renderings, plot plans and blueprints) and shall
be paid whether or not a transaction involving the Property occurs. Local
Broker has authorized SCC to periodically invoice Owner for reimbursement of
expenses that are incurred and any amounts paid by Owner to SCC shall reduce
the reimbursement obligations of Owner on a dollar for dollar basis. Should
Local Broker reasonably incur any of the expenses set forth above, so long as
SCC provides prior written approval of the expenses, SCC will reimburse Local
Broker.



4. Third-Party Beneficiary. The brokerage duties required for the sale of the
Property shall be performed only by qualified brokers, agents and other professionals
duly licensed, to the
extent required by applicable law. Local Broker and SCC acknowledge and agree
that the Owner is
an expressly intended third-party beneficiary of this Agreement for the
performance of the duties
required hereunder and SCC expressly acknowledges such through
the execution of an
acknowledgment in the form attached hereto as Exhibit B. SCC agrees that it
shall be directly
responsible to the Owner for the quality and coordination of all services
provided by SCC.



5. Indemnification. SCC shall indemnify, defend (with counsel reasonably
acceptable to
Local Broker) and hold Local Broker harmless from and against any and all
claims, controversies,
actions, liability, fines, penalties, damages or judgments relating to or
arising from SCC’s material breach
of this Agreement. Local Broker shall indemnify, defend (with counsel
reasonably acceptable to SCC)
and hold SCC harmless from and against any and all claims, controversies,
actions, liability, fines,
penalties, damages or judgments relating to or arising from Local Broker’s
material breach of this
Agreement. Local Broker agrees that SCC shall be a beneficiary of the indemnity
set forth in Section 9
of the Listing Agreement.



6. Representations. The Parties agree that SCC’s services under this
Agreement are
financial advisory services to Local Broker in connection with the contemplated
sale of the Property.
SCC represents and warrants to Local Broker that (i) SCC is entering into this
Agreement in reliance
upon the provisions of RSMo. Section 339.150; (ii) to the best of SCC’s
knowledge and belief, after due
inquiry, SCC and all of its agents performing services under it may perform
such services in compliance
with applicable laws without obtaining licenses from the Missouri Real Estate
Commission; and (iii) SCC
will use commercially reasonable efforts to comply with all applicable laws in
the performance of its
services hereunder.



7. Governing Law. This Agreement (i) shall be performed by SCC outside of the
State
of Missouri, (ii) shall be construed and enforced according to and governed by
the laws of the State
of New York, without regard to principles of conflicts of law. The Parties
hereby consent to the
subject matter and personal jurisdiction of the Federal and State courts of the
State of Missouri for
all actions arising out of or in connection with the performance or enforcement
of this Agreement.
The provisions of this paragraph shall survive the termination or expiration of
this Agreement.



8. Attorneys’ Fees. In connection with any controversy arising out of this
Agreement, the prevailing party shall be entitled to recover, in addition to costs,
damages or other relief, its
reasonable attorneys’ fees and costs incurred.



9. Modifications. This Agreement may not be amended, modified or changed, nor




3










 







shall any waiver of any provisions hereof be effective, except only by an
instrument in writing and signed by the Owner and the party against whom
enforcement of any waiver, amendment, change, modification or discharge is
sought.



10. Entire Agreement. This Agreement constitutes the entire agreement between
Local
Broker and SCC and supercedes all prior discussions, negotiations and
agreements, whether oral or written. In the event of any conflict between the
terms of the Listing Agreement and this Agreement, the terms of the Listing
Agreement shall govern.



11. Term; Survival. This Agreement shall be co-terminus with the Listing
Agreement;
provided, however, that the provisions of Sections 2, 3, 4, 5, 6 and 7 shall
survive termination or expiration of this Agreement.




[The remainder of this page is intentionally left blank]




4









 








          IN WITNESS WHEREOF, the parties hereto have duly entered into this
Agreement as of the day and year first above written.



	 	 	 	 	 
	COLLIERS TURLEY MARTIN TUCKER, INC.	 	 
	 
	 	 	 	 
	By:

	 	/s/ David Thiemann	 	 
	

	 	
 	 	 
	Name:

	 	David Thiemann	 	 
	Title:

	 	Managing Principal	 	 
	 
	 	 	 	 
	SECURED CAPITAL CORP	 	 
	 
	 	 	 	 
	By:
	 	/s/ Michael D. Cochran 	 	 
	

	 	
 	 	 
	

	 	Michael D. Cochran, Principal	 	 







5









 






EXHIBIT A




Fee for Sale of Property





	 	 	The commission payable under the Listing Agreement will be paid 20% to
Colliers Turley Martin Tucker, Inc. and 80% to Secured Capital Corp and
shall be computed based on the “Net Sale Price” received by Owner in
accordance with the following (for purposes of this Agreement, the term
“Net Sale Price” shall mean the Gross Sale Price received by Owner, less an
allowance provided to the buyer for roof repairs or replacement):





	 	 	 
	Net Sale Price Received by Owner	 	Commission
	 
	A. Up to and including $34 million

	 	1. 25% of Net Sale Price
	 
	B. In excess of $34 million, up to including $37
million

	 	$425,000 plus 5% of Net Sale Price in excess of
$34 million

	 
	C. In excess of $37 million

	 	$575,000 plus 7% of Net Sale Price in excess of
$37 million








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EXHIBIT B




ACKNOWLEDGMENT




          This
Acknowledgment is executed this 4thday of March, 2004 by Secured
Capital Corp. (“SCC”), acting as financial advisor retained by Colliers Turley
Martin Tucker, Inc. (“Broker”) to perform certain services as described in the
Advisory Agreement (the “Agreement”) between Broker and SCC dated as of the
date hereof in connection with the sale of the building presently known as One
Financial Plaza, with an address of 501 North Broadway, in St. Louis, Missouri,
appurtenant related parking facilities (partly owned in fee, partly by
leasehold) and appurtenant common areas (hereinafter, together with the real
estate on which the same are situated, collectively referred to as the
“Property”) presently owned by EBS Building, L.L.C. (“Owner”). In
consideration of the contract between Broker and SCC, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, SCC agrees as follows:



     1. SCC acknowledges that the Property is owned by Owner and that Owner has
entered into a
contract with Broker to act as the broker in connection with the sale of
the Property (the “Listing
Agreement”), which calls for, among other things, the payment of a fee to
Broker, 80% of which is to be paid
to SCC and 20% of which is to be retained by Broker.



     2. SCC further acknowledges that its Agreement with Broker is entered into
pursuant to the
Listing Agreement and for the ultimate benefit of Owner. In addition,
SCC acknowledges and agrees that
pursuant to the Agreement, it is responsible for the following aspects of
the Project (i) create a national
investor list; (ii) develop marketing plan and strategy; (iii) prepare
marketing materials, including teasers and a
marketing book; (iv) distribute marketing materials to non-Missouri
investors; (v) make marketing and follow-
up calls to non-Missouri investors; (vi)  respond to non-Missouri
investors’ questions; (vii) evaluate offers; and
(viii) to the extent requested, assist client and its counsel in
negotiations and closing. SCC agrees to perform
all such aspects in accordance with all applicable codes, ordinances and
laws, and with the requirements and
concepts established pursuant to the Listing Agreement.



     3. SCC hereby acknowledges and agrees that Owner is an expressly intended
third-party
beneficiary of the Agreement. SCC agrees that Owner’s status as intended
third-party beneficiary does not
constitute or create a contractual relationship between Owner and SCC and
does not allow SCC to enforce
the Agreement directly against Owner. However, SCC agrees that as an
intended third-party beneficiary,
Owner shall have the right to enforce the terms of the Agreement directly
against SCC, without accepting any
assignment of the Agreement, and that in such event Owner shall be
entitled to full and direct performance of
die Agreement from SCC.



     Specifically in this regard, SCC acknowledges and agrees that it shall be
directly and fully liable and responsible to Owner for the quality and
coordination of all services provided by SCC related to the sale of the
Property and for all defects or deficiencies in performance of its services as
described in the Agreement. In addition, SCC hereby agrees that all indemnities
and insurance coverages procured by SCC under the Agreement shall include and
run to the benefit of Owner and its agents, employees, officers and servants.



	 	 	 	 	 
	

	 	SECURED CAPITAL CORP
	 	 
	 
	 	 	 	 
	By:

	 	/s/ Michael D. Cochran	 	 
	

	 	
 	 	 
	Name:

	 	Michael D. Cochran	 	 
	Title:

	 	Principal	 	 







7









 








EXHIBIT 2




Schedule of Commissions



The commission payable under the Agreement will be paid 20% to Colliers Turley
Martin Tucker, Inc. and 80% to Secured Capital Corp and shall be computed based
on the “Net Sale Price” received by Owner in accordance with the following (for
purposes of this Agreement, the term “Net Sale Price” shall mean the Gross Sale
Price received by Owner, less an allowance provided to the buyer for roof
repairs or replacement):




	 	 	 
	Net Sale Price Received by
Owner	 	Commission
	 
	A. Up to and including $34 million

	 	1.25% of Net Sale Price
	 
	B. In excess of $34 million, up to including $37  million


	 	$425,000 plus 5% of Net Sale Price in excess of $34
million

	 
	C. In excess of $37 million

	 	$575,000 plus 7% of Net Sale Price in excess of
$37 million








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